Stone cold morons

The indycampers are morons. There's no getting around it, no sugar-coating it: stone cold morons. In -- legitimately -- resisting the Scottish Parliamentary Corporate Body's attempt to expel their small camp from Holyrood's grounds, the group have argued their case in a fashion which has lapsed from the divinely ridiculous to the grotesquely insulting. They have consistently ignored substantial legal arguments they might use to win their case, spending hours instead on eccentric, invariably doomed political points and barrack room lawyering. They are their own worst enemies.

This morning, they returned to Lord Turnbull's court, explaining that - months into their case and months after his first option - they still haven't tracked down a lawyer to represent them. The spokesmen for the camp went still further. They accused the judge of blasphemy, demanded the Queen appear to give evidence, demanded a jury hear the case, suggested that a key "spiritual" argument should be addressed by the court, declaring that "Jesus Christ the second is here and we're going to get our independence." 

I have the utmost sympathy for litigants -- ordinary folk -- trying to formulate legal cases without the assistance of a lawyer. This is hard, sometimes impossible, work. The logic of our courts puts them at a clear disadvantage when faced - as the indycampers have been faced - with professional opponents, whose bread and butter work is understanding legal procedures, rules and principles.

Having to do all this on the hoof - for yourself - without access to legal databases, without inbuilt legal know-how gained over the years, is tough. The inequality of arms can lead to injustice. Some judges are sympathetic to the plight of party litigants, others less so. Some try to take an active hand, focusing the ordinary punter's attention towards the key legal arguments and issues, rather than letting them dangle in the wind. They try to even up the odds, between the represented and the unrepresented party. They keep their patience, and try to see justice done as best they can.

Lord Turnbull is such a judge. We can only presume he lost the card-cut in the judicial dining room in Parliament House, to find himself landed with this case. And despite all manner of provocations, interminable, boring and irrelevant submissions -- this Court of Session judge has exhibited the patience of a saint. He had bent over backwards to accommodate the indycampers. He has treated their arguments as seriously as he could. He has tried to find any crumb of substantive legal argument in their digressive, and often just plain oddball submissions to the court. And by gum -- Lord Turnbull actually found one. The judge lit up this arguable point with neon lights in his first opinion in the "sovereign indigenous people of Scotland" case.  He told them to focus on it. He sounded sympathetic.

And what have the indycampers done with this helping hand? On the evidence of today's hearing, they've completely ignored it, abandoning a potentially winnable legal point which could block Holyrood's eviction plan, preferring instead to indulge in more antics and insults. It is frustrating. It is baffling.

Here's the short version of how they might survive. The Scottish Parliamentary Corporate Body is a public authority. Under the Human Rights Act 1998, the actions of public authorities must conform with the rights protected under the European Convention.  Article 10 protects free expression, Article 11 your right to freedom of assembly and association. Both of these are engaged by Holyrood's eviction plans, and both are qualified rights. 

That means the state is entitled to interfere with your rights to speak your mind and freely to assemble -- but only if particular conditions are met. The restrictions on your rights must be (a) according to law and (b) in pursuit of a legitimate aim -- national security, public safety, for the prevention of disorder or crime, for the protection of health or morals -- that kind of thing. Lastly, any interference must also be proportionate, striking a fair balance between collective interests pursued by the legitimate aim, and the fundamental rights of individuals to express their views, and to assemble. This is for the court to decide.

And in his first opinion, Lord Turnbull actually sounded reasonable skeptical about whether evicting this small camp would represent a proportionate measure by the Scottish Parliamentary Corporate Body. Distinguishing the situation involving the indycampers from other nearly analogous occupations, the judge had this to say:

[67] I have heard no evidence on the extent to which the respondents in the present case do, or do not, constitute an interference with the rights of others to access the grounds of the Scottish Parliament, or on any other matter which might fall to be weighed in a proportionality assessment.  As a resident of Edinburgh though, I am familiar with the layout of the grounds surrounding the Scottish Parliament building and the general location of the Camp.  As indicated by the petitioner, the Camp presently appears to occupy a small area at the very edge of the grounds which it owns and at the furthest point away from the entrance to the Parliament building.  It is not immediately obvious that the presence of the Camp would inhibit the use of the grounds by others for picnicking, dog-walking, or the like, as founded upon by the petitioner.  Nor is it immediately obvious that there are any real security or logistical concerns of the sort drawn attention to by the petitioner and which might weigh the proportionality balance in its favour.  

Abandoning their ridiculous antics, ceasing gratuitously to insult the trial judge, focusing on this legal argument  -- might actually get them somewhere. But after this morning's session, that looks like a fool's hope.

Schrödinger's womb

I've been traipsing after Michael Gove in his various - sometimes curious - parliamentary appearances on the proposed abolition of the Human Rights Act. The Tories are in a bit of bother. Mopping up after the majestically incompetent predecessor Chris Grayling, the new Lord Chancellor has the thankless task of marshalling the Conservatives' jury-rigged proposals to abolish the HRA - and to replace it with a British Bill of Rights - into some kind of defensible public shape. 

This morning, he was explaining himself to Helena Kennedy's EU Justice subcommittee in Westminster. And what remains clear after today's session is: devolution remains a big problem for the UK government's HRA repeal policy -- amongst many others. 

In June last year, Gove told MPs that "in this United Kingdom Parliament, human rights are a reserved matter." He has been rowing back on that decisive statement ever since. In December, he told the Lords Constitution Committee that human rights was "neither reserved nor devolved".

As Helena Kennedy recognised from the chair this morning, "one of the really tricky issues around all these discussions is connected to devolution." Is Holyrood's consent - and the consent of the Cardiff and Belfast - required either to abolish the Human Rights Act, and to introduce any British Bill of Rights? Former Met commissioner, Ian Blair, took up this line with Gove this morning.

Blair: "Some of the evidence we have received from some of the members of the devolved institutions has been really rather surprising. Quite striking. One that I will particularly quote from is from the member of the Scottish parliament, Mr Biagi, who made it absolutely clear to the committee that in his opinion - and in the opinion of his party - human rights legislation is not a reserved power. And as far as I can see, it is either a reserved power, or it is a devolved power. 

But that is not the position I think you took in front of the Constitutional Affairs Committee in December. And it is not the position that those bringing forward and through the House of the Scotland Bill took. 

But none of us - I think - can understand how it can be neither reserved nor devolved - which makes you feel a little bit pregnant. I mean, it is just not possible. It is either reserved or devolved. So -- my question to you is: do you agree that the consent of the devolved parliaments would be required for an application of -- for the introduction of -- a British Bill of Rights to devolved regions?" 

So what did the Lord Chancellor reckon? Gove doubled down on his strange formulation from the Constitution Committee last December.

Gove: "It is neither reserved nor devolved. But it is the case that any reform or change to the Human Rights Act is a matter for the Westminster parliament. The application of human rights is a matter for Scots courts and indeed, for the Scottish executive -- Scottish government. Within that, so -- um, um,-- it might be -- if you could imagine the state of permant pregnancy, then that's what we have. As for consent, we will consult on what we think is the best way of involving all the constituent parts of the United Kingdom in understanding the case for rights reform. But I wouldn't want to prejudge at this stage exactly how we might  do so."

So. Um. There we have it. "Permanent pregnancy." According to the Lord Chancellor, human rights are the Schrödinger's womb of British politics. If you are prepared to read between the lines of what Gove is trying to say --  you can detect a pretty hazy rendering of the argument I put here. Ish. Just about. If you squint, and peer through the bottom of the milk bottle. Gove's performance today underscores the point. In contrast with the Scottish government's straightfoward legal view - the Sewel convention is engaged by repealing and replacing the Act - the UK government remains in an awful guddle. And if this morning's Lords drubbing is anything to go by, it'll take all of his cunning to free the Lord Chancellor from devolution trap his government has unthinkingly blundered into.  

Pressed on whether or not the outcome of this process might not be an English, rather than a British Bill of Rights, Gove continued:

"I would hope that there would be a British Bill of Rights. But the one thing I will concede is that while I have many friends -- and there are many people who I admire in the Scottish National Party -- it is nevertheless the leadership of the Scottish National Party might want -- if you can imagine such a thing -- to view this exercise through a party political lens. Certainly, in the run up to the Scottish parliamentary elections. I hope we can encourage them to resist that temptation."

Temptation indeed. Heaven forfend.

Gove: human rights "neither reserved nor devolved"

Does Westminster need Holyrood's consent to repeal the Human Rights Act? This blog has been asking this important question since the general election. In June, Deputy Leader of the House of Commons, Therese Coffey, told Joanna Cherry that human rights are "a reserved for the UK Parliament and not a devolved matter," implying that consent for repeal was unnecessary. Later that month, justice minister Michael Gove reiterated this view, telling MPs that "in this United Kingdom Parliament, human rights are a reserved matter."

But there's a problem. If you rummage through the Scotland Act, you won't find human rights on the list of reserved matters. Indeed, Schedule 5 makes it crystal clear that human rights do fall within Holyrood's legislative competence. But what about the Human Rights Act itself? Schedule 4 of the Scotland Act protects the Human Rights Act from modification, amendment or repeal by Holyrood. 

This leaves us in a funny situation. Human rights aren't reserved to Westminster, but only Westminster can amend or repeal the Human Rights Act. Here's where the Sewel convention comes in. This rule of constitutional morality says that if Westminster wants to legislate about devolved matters, or wish to expand or curtail the powers of the Scottish Parliament, they must seek the consent of MSPs before doing so. The UK parliament remains sovereign. The Lords and Commons could ram through any changes they like over the objections of MSPs. But the convention is -- they won't. The UK government is sufficiently committed to this convention to transpose a version of it into the Scotland Bill. It cannot lightly be dispensed with.

So how does Sewel apply to HRA repeal? Should it be treated as a devolved matter, requiring consent - or a reserved matter, requiring none? Yesterday brought some interesting but largely overlooked developments on this score. Michael Gove appeared before the House of Lords Constitutional Affairs Committee. Questioned about the UK government's repeal proposals, the former Lord President of the Court of Session - Lord Cullen - put the question to Gove directly:

Cullen: "Is it accepted that the repeal of the Human Rights Act and the creation of a Bill of Rights Act would give rise to the application of the Sewel convention?" 

Reverse-ferreting from his earlier, much more bullish pronouncements in the Commons, Gove wibbled:

Gove: "I think: its an open question. And the reason why I hestitate to pronounce definitively is that we'd have to see what was in any given Bill in order to be absolutely certain as to whether or not a legislative consent motion might be required in any of the devolved legislatures."

Lord Cullen pressed on, as it became increasingly clear that Gove and his department still haven't fully contemplated the devolved implications of their repeal policy. In June, he thundered that "in this United Kingdom Parliament, human rights are a reserved matter." And in December? Wibble wibble.

Cullen: "Taking the matter at its most basic, legislation in regards to human rights is a matter which is not reserved, is that right?" 

Gove: "It is neither reserved nor devolved." 

Cullen: "So it is open to the Scottish Parliament to make its own provision for human rights, if it so chooses?" 

Gove: "The -- My understanding of the constitutional legal position is that only the United Kingdom parliament can amend the Human Rights Act. But it is the case that the application of human rights, by definition, differs in Scotland, as distinct from the other parts of the United Kingdom, because Scottish courts will interpret those rights consistent with Scots law and Scots legal tradition." 

Cullen: "What I'm driving at is, would the creation of a new Bill of Rights Act be something which would give rise to the Sewel convention, because it would enter an area where the Scottish Parliament itself could legislate?" 

Gove: "Well, I don't believe that the Scottish Parliament -- I, you know, stand to be corrected -- I don't believe the Scottish Parliament can legislate to fundamentally alter the rights architecture which the Human Rights Act has put in place. I think that is a matter for the United Kingdom parliament, as I understand it."

Hardly the most trenchant or confident analysis, you might well think. Reading his answers in the light of my opening observations, you can see what Gove has done here. He's right to this extent: Holyrood can't amend the Human Rights Act because Schedule 4 of the Scotland Act prevents MSPs from doing so. But the Lord Chancellor has precisely no answer to the point put squarely to him by the Scottish judge: human rights are not a reserved matter. The idea of a matter being "neither reserved nor devolved" is a nonsense, a muddle, and a confusion. 

Having airily dismissed the idea just months ago, Gove now concedes that legislative consent may be necessary, depending on the detail of his British Bill. The admission is significant enough on its own, but Gove's quibbling reticence on whether Holyrood will have to give the UK administration's Bill of Rights the nod is stonewalling, pure and simple. It is next to impossible to imagine any version of any British Bill of Rights which would not impact on Holyrood's legislative competence, and accordingly, engage Sewel. 

But Gove is a politician. You find playing for time in the beginner's kit. And when you find yourself lost and confused in public about something so basic? It is all you can really do. But time is running out for the Lord Chancellor. Nicola Sturgeon has already said that "the SNP Government will invite the Scottish Parliament to refuse legislative consent to scrap" the Human Rights Act. The Sewel stramash isn't going away. In his recent Tim Yeo libel judgment, Mr Justice Warby memorably observed in that "when a fish wriggles on a hook, it goes deeper into the mouth and guarantees that the fish will not escape." Eventually, Mr Gove will have to make up his mind: bite or flight. 

"Left, left, left, left, left..."

A canny friend of mine recently asked me a question which has got me thinking. "Why is it," he wondered, "that Scotland has so many newspaper columnists who are not left wing, but who incessantly slag off the SNP for not really being left wing?"

He's right. The logic is mad. Such a critique would make perfect sense from the hard left. The Scottish National Party are social democrats. They maintain that a compromise with market forces is possible, but contend that political power should be leveraged to intervene and mitigate the perverse consequences of those markets. For the impatient democratic socialist, this will seem like a milquetoast regimen. Feeble, deluded about the evils of capitalism, delusional about the ability of the state to effectively intervene within a capitalist economic model, marginalising and misdirecting the political agency of confrontational class politics. These are old ideological battles. Agree or disagree with the arguments - the SNP is clearly open to such a left-facing critique. 

But to hear it articulated again and again from centrists, the soft centre-left, the right and the centre-right, seems barking. "Why won't you embrace a policy platform which is further away from my own political preferences, so I can disapprove of you and condemn you properly as an odious Corbynite sect?" "Why don't you adopt policy solutions of which I and 'middle Scotland' would disapprove?"

This strange tendency was perfectly embodied by Brian Monteith's column in the Scotsman yesterday. Monteith, a former Tory MSP, is not left wing. He presumably supports Osborne's spending cuts. Presumably, he welcomes the idea of a smaller state, cutting public services, and all the cognate consequences of these policy choices. While the question of resources is - to a limited extent - separable from the performance of our public services, it is pretty rich to hear a Tory sympathiser bitch about the logical consequences of cross-departmental spending cuts. Doing more with less is the public policy wisdom of the numpty. You almost always tend to do less with less. Quod erat demonstrandum. 

The Herald's David Torrance - whose critical sensibilities and muleish, contrary attitude I broadly approve of - has a fine line in these kind of articles. Although often dismissed as a Tory - David understands himself as a creature of the centre left. Let's take him at his word. But even embracing his own self-diagnosis -- why does it seem to niggle him so much to find the SNP more closely aligned with his own declared preferences, than the far-left perspective which would make many of his criticisms intelligible? I'm bemused.

A personal example illustrates the strangeness of right-wingers' and centrists' bashing of the SNP from the left. As regular readers of the blog will know, I am significantly more preoccupied by questions of individual freedom and a liberal politics than most Scottish Nationalists, and certainly than the Scottish government. I don't agree with the SNP's more authoritarian justice policies. I find the party's commitment to fundamental rights to be a bit shakier than it ought to be -- though I have been hearted by recent rhetoric in defence of the Human Rights Act.  But it would be perverse to slag off these promising developments which draw the party hierarchy closer to my own convictions, by sneering that the SNP's occasional flashes of illiberal communitarianism are half-baked and less than thoroughgoing. "Call that tyranny? This is tyranny."  Though this is precisely the logic of the party's critics on the centre-right and left. 

Is it simply rankling at perceived hypocrisy? "You talk a good game, but, my Nationalist friend, you are a toom tabard." Perhaps. But the breadth and depth of this critique seems to me to go further than simply reflecting an intolerance for sleekit political rhetoric which successfully gestures left and governs centre-left. This theme seems to have become a niggling preoccupation, returned to again and again, in column after column. I didn't have a decent or convincing answer for my friend. It perplexes.

Alistair Carmichael: The Man Who Saved the HRA?

Alistair Carmichael is clearly a lazy thinker. The former Secretary of State for Scotland secured a debate on the Human Rights Act in Westminster Hall this Tuesday. During his remarks, the former solicitor held forth at length on the devolution implications of repeal - and got his law almost entirely wrong: muddle, guddle and confusion. 

He told MPs that the Human Rights Act is "hardwired into the devolution settlements in Scotland, Wales and Northern Ireland." It isn't. He claimed that "their Acts must be compatible with" the Human Rights Act. They don't.  He concluded "it has already been established that if this is to change, at least for the Scottish Parliament a legislative consent motion would be required in accordance with the Sewel convention." He clearly wasn't listening, when this claim was directly contradicted by government ministers Michael Gove and Therese Coffey. 

Happily, SNP's Joanna Cherry was rather more on the ball, echoing the analysis this blog has been pushing for some time. The Edinburgh South West MP set out the terrain of potential conflict in clear, sharp detail in her speech:

"The SNP has been deeply concerned by recent statements from Ministers that suggest that they believe that the UK Government could repeal the Human Rights Act without reference to the Scottish Parliament. They argue that the Sewel convention would not be engaged because human rights are a reserved matter. That is wrong and legally illiterate. Human rights are not a reserved matter and are not listed as such in schedule 5 to the Scotland Act 1998. Schedule 4 to the Scotland Act protects the Human Rights Act against modification by the Scottish Parliament, but human rights per se are not a reserved matter. It was part of Donald Dewar’s scheme that all matters would be devolved unless they were specifically reserved. Human rights are not specifically reserved. 

Moreover, human rights are written into the Scotland Act. The European convention on human rights is entrenched in the Act through section 29(2)(d), which provides that an Act of the Scottish Parliament that is incompatible with the ECHR is actually outwith the legislative competence of the Scottish Parliament. Section 57(2) states: 

“A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with” 

the ECHR. It is therefore incorrect to say that human rights are a reserved matter. They are devolved and I urge the Minister to think carefully about the statements made by his colleagues to the effect that the Sewel convention would not be engaged.

 

The Prime Minister has repeatedly spoken of a “respect” agenda, and I stand here as one of 56 SNP Members elected at the general election. I urge the Government to consider their respect agenda, to return to the Scotland Act 1998 and to get their lawyers to look at it carefully. They will find that human rights are not a reserved matter and are devolved, and that the Human Rights Act should not be repealed or otherwise interfered with by the British Parliament without first seeking the consent of the Scottish Parliament. 

I want to make it clear, however, that the SNP would seek to prevent the repeal of the Human Rights Act for the whole United Kingdom. It is a fundamental issue and we want the Human Rights Act to remain on the statute book for the entire UK because, as the right hon. and learned Member for Beaconsfield said, it has brought huge benefit in terms of the accessibility of rights for people in this country."

The minister in the debate, Dominic Raab, failed to respond to any of these points. Carmichael's legal blundering isn't just innocent confusion over a technical topic -- even if we might expect better from a University of Aberdeen LLB. His fudging and his mudging can only help to disorientate opponents of Tory repeal plans, strengthening the UK government's hand, and diverting our attention away from viable stratagems of resistance. I'm sure it isn't deliberate mischief. It's just the usual incompetence and sloth. But if Carmichael is serious about defending the Act from the Tory axe, he's going to have to buck up his ideas -  or take his bungling elsewhere. 

Land reform: through the looking glass

An awkward admission: by far the biggest hurdle to "radical" land reform in Scotland is the European Convention on Human Rights.

In terms of traditional political loyalties, we're through the looking glass here. Tweedy landlords, conservative estate owners and land agents may vote Tory to back the established order -- but if Gove is permitted to strip Convention rights out of Scots law, those self-same property owners would find themselves entirely at the mercy of a democratic majority in Holyrood hell bent on a substantial rejigging of the territorial map.

They may not give a ha'penny toss for many of the freedoms the ECHR enshrines, but their right to property -- well, that's a different story. Without it, they would quickly discover that their vaunted rights at common law aren't all they're cracked up to be. They'd find Magna Carta mum. People inclined to defend your Convention rights, by contrast, find themselves stymied again and again by Article 1 Protocol 1, and the right to property it enshrines. This right to property isn't absolute. States enjoy a broad margin of appreciation within which they can raise taxes, regulate property and so on -- but the right has real teeth. Fans of cognitive dissonance, eat your heart out. The basic text of the Convention reads as follows:

(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 

(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

For many land reformers, our history of a strikingly unequal distribution of landed property is a nightmare from which they are trying to awaken. Our situation recalls the well-known joke about the tourist in Ireland, seeking directions. "Well if I were you," a local replies, "I wouldn't start from here." But ownership is, inevitably, backwards looking. Without a revolution, we don't begin at year zero, with a clean slate. It isn't a matter of hitting reset and redrawing the maps. 

History also teaches us that the landed interest have the wealth and willingness to go to law where they believe their rights have been violated -- and win.  The first Act of the Scottish Parliament to be struck down by the courts on human rights grounds concerned a challenge by a landowner to the rights of one of his tenant farmers.  The owner won; the farmer killed himself shortly afterwards. These strictures aren't to be sniffed at and they aren't all that easy to get around in a systematic way. 

Although the text of the Convention doesn't expressly require the state to pay compensation to people whose property it expropriates, it has been interpreted in that way by the European Court. For example, in James v. The United Kingdom, judges made clear that the state must give fair compensation to those whose property is taken or transferred:

"... under the legal systems of the Contracting States, the taking of property in the public interest without payment of compensation is treated as justifiable only in exceptional circumstances not relevant for present purposes. As far as Article 1 (P1-1) is concerned, the protection of the right of property it affords would be largely illusory and ineffective in the absence of any equivalent principle. Clearly, compensation terms are material to the assessment whether the contested legislation respects a fair balance between the various interests at stake and, notably, whether it does not impose a disproportionate burden on [property owners]."

Compulsory purchases can be justified in the general interest -- but kicking the lairds out of their castles and estates without stumping up cash is doomed from an ECHR point of view. As a result, finding a mechanism which (a) effectively redistributes and rebalances land ownership while (b) working within the current owners' right to property ain't easy. 

In the Land Reform (Scotland) Bill, we find the Scottish Government's latest attempt to do so. You'll find the most controversial provisions in Part 5 of the Bill, which sets out a revived right to buy.  That right will only be exercisable by community bodies or a third party which they nominate -- and with consent of Scottish Ministers. Ministers must not consent to the transfer of the land unless all four of the following criteria are met. And the criteria to be met are pretty ferocious.

1. The transfer of land is likely to further the achievement of sustainable development in relation to the land, 
2. The transfer of land is in the public interest, 
3. The transfer of land - (i) is likely to result in significant benefit to the relevant community  and (ii) is the only practicable way of achieving that significant benefit, and 
4. Not granting consent to the transfer of land is likely to result in significant harm to that community.

The third and fourth conditions are particularly onerous. Perhaps reflecting this, if would-be purchasers fail to secure consent, Scottish ministers will foot the bill for their application. If the community body does get the nod, however, the Scottish government will appoint a land valuer, who will independently assess the market value of the land, giving the parties the opportunity to contribute to the deliberations on fair compensation. The government will foot the bill for these valuations too, and if the owners or purchasers are disgruntled, they'll be able to go to the lands tribunal and air their dissatisfaction. Once the decision has been taken, owners will not be allowed to foil the process with a quick fire sale or sneaky transfer to their preferred purchaser. 

The land lobby have predictably attacked these criteria as vague and undefined, crying Mugabe, land grabs and bloody murder. They are nothing of the sort. The language of the legislation is necessarily impressionistic, allowing ministers to apply broad principles to different situations and applications from across the country. But surely the landowners are - also characteristically - protesting too much here. A thick vein of (understandable) caution runs through these proposals. As politicians and property owners shadow box, enjoying the mutual recrimination and batting at phantoms, a property lawyer friend summarised the reality more pithily.

"This Bill is not as radical as claimed by Scottish Government (given the thresholds for use of power to sell). Not as awful as claimed by landowners (for similar reasons). Basically, making something like this ECHR proof means they can't do something revolutionary."

There's a lesson somewhere in here for Tory enthusiasts of human rights repeal. When you're through the looking glass, you should be careful what you wish for. 

Gove: "in this parliament, human rights are a reserved matter"

Thanks to Jack of Kent, who alerted me to the House of Commons justice questions which took place yesterday.  A couple of SNP MPs took the opportunity to ask the Lord Chancellor about his government's repeal plans. Michael Gove indicated that he is due to meet the SNP Cabinet Secretary for Justice, Michael Matheson, next week. But new Aberdeen North MP, Kirsty Blackman, went on, putting the following to him: 

"The Minister will be aware that the Scottish Parliament voted by 100 votes to 10 to endorse the Human Rights Act last year, and that parties representing 58 of the 59 Scottish Westminster seats are against the repeal. Will the Minister make a commitment to not imposing the repeal on Scotland against the will of our people?"

 Gove's reply is remarkable. 

"She makes a very powerful point about the range of opinions in support of safeguarding, enhancing and indeed modernising our human rights in this country. I shall look forward to engaging with the Scottish National party and others, but I think it is important to stress that in this United Kingdom Parliament, human rights are a reserved matter, and parties that support reform of the Human Rights Act secured more than 50% of the votes at the last general election."

Which is, of course, rubbish. Human rights are categorically not a reserved matter, "in this United Kingdom Parliament", or anywhere else. Rummage through Schedule 5 of the Scotland Act, and you won't find them listed. Indeed, the only reference to human rights in the big list of things Holyrood cannot do makes clear that the issue of "observing and implementing international obligations, obligations under the Human Rights Convention" is not reserved.  

As Joanna Cherry's Scotland Bill amendment flushed out on Monday of last week, Gove's only argument that the Sewel convention doesn't apply is far narrower than his imperial answer suggests. Constitutionally, the fact that Mr Gove feels he has a Commons mandate is neither here nor there.  To quote section two of his government's Scotland Bill, "it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament."

Yet more slapdash legal homework from this incompetent government,  The shambles continues.

HRA repeal: Let's make Gove walk burning coals...

Scotland Bill Monday taught us that Her Majesty's government in London believes that it is within its legal and constitutional rights to repeal the Human Rights Act without reference to Holyrood. They argue that the Sewel convention is not engaged, that the Act is a reserved matter, and that MSPs should get stuffed. 

By contrast, Cabinet Secretary for Justice, Michael Matheson, has indicated that the Scottish Government "will robustly oppose any attempt by the UK Government to repeal the Human Rights Act or to withdraw from the ECHR." Nicola Sturgeon has already said that "the SNP Government will invite the Scottish Parliament to refuse legislative consent to scrap" the Act. 

In more consensual times, issues of this kind tend to be worked out amicably between the UK and Scottish governments, with ministers cooperating to bring the consent motions before Holyrood for assent or rejection. But here, Scottish and UK ministers are now on course for a fundamental, head-on collision; one government arguing that Sewel is engaged, the other arguing that it is irrelevant. We're in the debateable lands of a constitutional crisis. So here are couple of ideas for MSPs of whatever stripe, who are keen to give the Tory government as rough a time as possible in their attempt to roll back our basic rights. 

1. Get ahead of the game. Seize the initiative. Why doesn't the Scottish Parliament Justice Committee, or Holyrood's Devolution Committee, take it upon themselves to conduct a short enquiry on whether Therese Coffey's high handed and complacent Commons answer was right? This is a fundamental question of Holyrood's legal prerogatives. There is no excuse for a rushed, cack-handed panic once the Tory government publish their Bill. As Malcolm Tucker might say, we should get our retaliation in first. Pile on the pressure. 

The Tory manifesto pledged the new government to axing the Act. This isn't a hypothetical proposal. All we are now awaiting is the detail. Why not anticipate it? Cameron's repeal plans have been delayed. MSPs should seize the opportunity that represents.  Let's fill the legal vacuum between David Mundell's ears. Take evidence. Get the Law Society in. Invite the Scottish Human Rights Commission. Academic types. 

Summon learned witnesses like Iain Jamieson to come along to air their views. A retired UK and Scottish Government lawyer, Jamieson headed the team of lawyers who instructed the drafting of the Scotland Act 1998 -- and argues, contra Coffey, that Sewel would clearly be engaged by HRA repeal. He would be well-placed to give our politicians a steer so that the debate on human rights reform can be conducted in full knowledge of the arguments. MSPs can make it so and exploit their bully pulpit. These aren't dull questions of legal technicality. They're constitutional firecrackers. Let's light them, and light them now.

2.  The Scottish Ministers don't have to dangle about uselessly.  It isn't enough to be right. It is critical to be right at the right time. Gove's delays represent a perfect opportunity for strategic preparation. So here's another scheme which our politicians would be canny to consider. Once the UK government publish their repeal Bill, the Scottish government should immediately lay a legislative consent motion before Holyrood, based on its own legal analysis, inviting MSPs to knock the proposal back. The matter is then referred to a Holyrood committee for scrutiny. All the better if that scrutiny has already been anticipated, and evidence already taken.   

Westminster is not in charge of this process. Whitehall's constitutional analysis is not final. Holyrood has standing orders on the procedures for indicating legislative consent -- and Scottish ministers retain considerable initiative. There is precisely nothing that Michael Gove or David Cameron or David Mundell can do to prevent the Scottish Government from tabling a motion on its own initiative with a view to convincing members to decline to give consent. So let's do that too. 

Like the Deputy Leader of the House of Commons -- the Prime Minister and his cabinet colleagues may believe that the Human Rights Act is theirs to destroy. Westminster remains sovereign. Tory MPs can ram through Human Rights Act repeal if they want. But they should be forced to do so in the teeth of the noisiest opposition possible. They should be forced to run roughshod over our devolved institutions and constitutional conventions. If they think the prize of repeal is worth traversing the burning coals, let their soles burn. 

Does repeal of the Human Rights Act require Sewel consent?

That's one of the critical questions in the legal and political battle against Tory plans to abolish the Human Rights Act.

Iain Jamieson, Professor Christine Bell and yours truly have argued that "axing the Act" would and should require Holyrood's consent under the Sewel convention -- which could be withheld. Hitherto, the UK government has been keeping its legal cards close to its chest. Gove has been mum. The Secretary of State for Scotland turned in a car-crash interview on Radio Scotland shortly after the election, in which he showed no awareness whatever of the devolved implications of his government's repeal plans. Little has been said since. Until last Monday, that is. 

Responding to Joanna Cherry's human rights amendment to the Scotland Bill in Westminster, Deputy Leader of the House, Therese Coffey, responded for the government. Significantly, she claimed that the Human Rights Act should be seen as a matter reserved to Westminster, invoking precisely the logic I warned about on Monday. She told MPs:

"The hon. and learned Member for Edinburgh South West referred in particular to amendment 67. Indeed, the right hon. Member for Orkney and Shetland said that this matter should be consistent across the UK, reinforcing that this is a reserved for the UK Parliament and not a devolved matter. The hon. and learned Lady said that the UK Government had not been clear on some aspects of this matter. I believe that the Prime Minister has been clear at this Dispatch Box. Amendment 67 would amend the Bill such that paragraph 1 of schedule 4 to the 1998 Act would be modified to remove the Human Rights Act 1998 from the list of legislation the Scottish Parliament cannot modify, otherwise known as the “protected enactments”. The House will be aware that the Government outlined their proposal to reform and modernise our human rights framework by replacing the Human Rights Act with a Bill of Rights. That was reinforced today by my right hon. Friend the Prime Minister at the celebration of the 800th anniversary of Magna Carta. Of course, we are aware of the possible devolution implications of reform and we can engage with the devolved Administrations as we develop the proposals. As the Secretary of State said, the Sewel convention, as intended by Lord Sewel, has been placed in the Bill, but this Parliament remains sovereign. The Government are certainly committed to human rights and, as I indicated earlier, we will consider the devolution implications."

Pete Wishart intervened, grouchily (and a bit inaccurately):

"That is just not good enough. These are fundamental and profound issues for the Scottish Parliament. We are dependent on the Human Rights Act for the competence of the Parliament. Will the Minister vow to go forward, make sure this is looked at properly, and come back with a more suitable and substantial response?"

And Coffey replied:

"The hon. Gentleman is right that these are important matters, and I can assure him that my right hon. Friend the Secretary of State is engaging with the devolved Administration as we develop the proposals. It has to be said, however, that the amendment is squarely outwith the Smith commission agreement, which contained no proposals in this respect. The hon. and learned Member for Edinburgh South West herself said it was not directly a matter for the Scottish Parliament."

In a nutshell, this suggests the Westminster government will argue that by dint of its inclusion as a protected enactment in Schedule 4 of the Scotland Act, the Human Rights Act is a reserved matter and Holyrood's consent is not required for the Tory majority to repeal the Act north and south of the border. Coffey's answer did not address the arguably more important question - will consent be required to enact a British Bill of Rights?  

But a straw in the wind. 

Liars, and Lord Burns, and scares! (Oh, my!)

No new clods turned over and coaxed into anxiousness at the Peat Worrier today, but I do have a couple of pieces elsewhere on the web that you might be interested in. Mike over at Bella Caledonia has been scratching his head over the human rights debate recently. Can Scotland block abolition? Are the Tories plotting to pull us out of the European Convention on Human Rights? What are the key issues? He asked me to step in to provide a brisk, hopefully clear account of the key issues, where we are, and the main opportunities for resistance and devolved mischief making.  My post went up over at Bella this morning. A wee excerpt:

"Britain’s human rights debate is a mess. From the new Lord Chancellor’s office to broadcasters’ studios, from human rights defenders to the offices of the most hostile newspaper, the public debate about Human Rights Act abolition is a picture of confusion. Is the HRA written into the devolution settlement? What about Northern Ireland? Can Scotland block repeal? What about our relationship with the Strasbourg Court? Will individuals still be able to send petitions there if Westminster cuts “Labour’s” Human Rights Act out of the statute book? So let’s get back to basics and try to straighten the damn thing out. If only to save us from the perils of complacency and dangers of false pessimism."

Read the whole thing here.  In parallel, following on from yesterday's Coulson blog, I have a piece in the National this morning on Lord Burns' "no case to answer" decision in the High Court in Edinburgh, and the fallout for Tommy Sheridan and his increasingly desperate and shrill attempts to convince the world that he has been the victim of some kind of judicial coup. Another excerpt:

"ON October 11, 2010, weeks into his prosecution for perjury, Tommy Sheridan sacked his defence team. Having already dispensed with the services of Donald Findlay, the former SSP MSP gave Maggie Scott QC her jotters. Freed from his lawyers’ restraining influences, Sheridan conducted his own defence in characteristically rambunctious style. He stood accused of committing a fraud on the court, lying in order to win £200,000 in damages from the now-defunct News of the World newspaper. Against the backdrop of the gathering storm of the phone-hacking scandal, Sheridan promptly supplemented his witness list with a number of former News International employees, including the Prime Minister’s serving director of communications, Andy Coulson."

Find the whole article here.

Scotland and Human Rights Act abolition...

With tidings this morning that David Cameron has charged Michael Gove with abolishing "Labour's Human Rights Act", there is a good deal of confusion and misinformation doing the rounds online about the Scottish angle.  

Isn't the Human Rights Act written into the Scotland Act? Can Holyrood resist Tory moves to repeal the law? What about the devolved parliaments in Wales and Northern Ireland? Will Europe wear it?

The answers to these questions is a wee bit complicated. Back at the end of 2014, I took a critical look at these concerns. Professor Aileen McHarg of the University of Strathclyde has also written this more comprehensive treatment.  The short version? The Human Rights Act is not written into the Scotland Act. This is misleading, and increasingly unhelpful, shorthand. Under the devolution legislation, Acts of the Scottish Parliament and decisions of Scottish ministers must comply with European Convention rights. 

If they do not, you can take your case to the Court of Session, inviting judges to strike the offending laws or decisions down. The powers of both the legislature and executive are checked. But the Human Rights Act goes further, requiring all public authorities in the United Kingdom - prisons, police officers, councils - to respect your rights to free expression, privacy, property, liberty, and so on. We have two distinct human rights regimes in this country, and if the HRA is repealed, it will require only Holyrood and the Scottish Ministers to take these fundamental rights into account.

But there is another important technicality here. Human rights aren't reserved matters under the Scotland Act. The Human Rights Act is a protected enactment under Schedule 4 of the devolution legislation -- meaning that Holyrood cannot repeal or amend it -- but human rights are devolved. Several stormy legal and political consequences flow from these facts, more fully explored in my 2014 blog.  

So, big questions for Mr Gove: will your government attempt to eliminate the ECHR rights enshrined in the Scotland, Wales and Northern Ireland Acts? What if Edinburgh, Cardiff and Belfast reject the idea? Will you crack on anyway? What if the majorities in the devolved legislatures do not approve of your British Bill of Rights? Will you respect and recognise their democratic mandates, or employ Westminster sovereignty to ram the replacement through? As human rights are not a reserved matter, will you seek the legislative consent of Holyrood to repeal devolved aspects of the Human Rights Act, and if this is not forthcoming, how will you respond?

Thus far, the Tories have had bugger all to say about the detailed devolved implications of their abolition plan -- but they are politically explosive. Thus far, by focussing on the court politics of tactics and slogans, the media have singularly failed to take Conservative ministers to task on their woolly human rights thinking. Like Cameron's pledge to "renegotiate" the European Union treaties without any real or realisable demands, abolition of the Human Rights Act is a slogan -- not a worked out policy.

Read the whole piece here.

Is "revenge porn" illegal in Scotland?

I've never been convinced of the propriety of calling it "revenge porn", but the online publication of explicit images without their subjects’ consent has shot up the political agenda in recent months. 

The UK government is proposing new offences in the Criminal Justice and Courts Bill, bearing the maximum penalty of two years imprisonment. A number of other jurisdictions have already adopted new laws, criminalising the publication of such material. With characteristic disregard for the many jurisdictions of the United Kingdom, and their differences, broadcasters and media have been bandying about the idea that 'Revenge porn' illegal under new UK law - dumb to the fact that Chris Grayling's legislation will extend only to England and Wales. 

So what about Scotland, and folk in Scotland, who find compromising photographs or videos of themselves in intimate situations plastered across the internet, or distributed to their friends and acquaintances by a spiteful former parter? A case reported in the Scotsman this morning shows that the Procurator Fiscal may already have effective - if unexpected - legal tools to pursue and punish people who attempt to humiliate or punish people in this way. After the collapse of his relationship, twenty year old Robert McGinlay decided to use Facebook to share a sexually-explicit photograph of his former partner -- stubbornly refusing to take the image down, even after the complainer had "begged" him to do so. She phoned the police -- and now McGinlay finds himself fined and convicted of "threatening or abusive behaviour".

Holyrood brought in this new offence in 2010 in response to the erosion of the common law crime of breach of the peace by the appeals court. Under pressure from the European Convention, judges reckoned that this traditional offence was defined too broadly, and gradually knocked off its rough corners.  This included a new emphasis in the case law on breach of the peace having a necessarily public element.  Despite the fact that, a few years ago, breach charges made up a great part of what we might call domestic abuse offences in Scotland, the crime retreated from the privacy of the home, onto the streets and into the public domain. The parliament stepped in to fill that legal vacuum. Section 38 of the Criminal Justice and Licensing (Scotland) Act was the result. 

Like the common law crime it supplanted, "threatening or abusive" behaviour is an extremely broadly defined offence -- and it shouldn't be surprising to see prosecutors using it in a creative way to pursue people like McGinlay - whose behaviour was undoubtedly abusive, alarming, and wilfully intended to disturb his victim. A traditional breach of the peace it may not be, but I have no sympathy whatever with this cruel young man. 

In the aftermath of Charlie Hebdo atrocity, however, and the subsequent less than convincing hymns to free expression, we might reappraise the potential breadth of this new offence with a measure of anxiety. Under the Human Rights Act, courts are obliged to interpret and apply the criminal law having regard to your Article 10 rights to free expression -- but firing up social media throws up a lively cavalcade of "abusive" behaviour, capable of "alarming" the sensitively-constituted "reasonable person".  As always, we must keep a watch on the watchdog state, to ensure that the remedy isn't worse than the ill it was designed to cure. 

Let Glasgow flourish?

Some muddled thinking has been creeping - and yesterday marched boldly  - into the devolution debate. "Power over housing benefit should be devolved." This way of talking about and conceiving of devolution - as a box of tricks for distribution - is often a useful shorthand, but sometimes it leads us into deep confusion. 

So it is this morning, with reports that the Labour leader of Glasgow City Council, Gordon Matheson, thinks the city needs "more devolution" of its own, and has petitioned the Smith Commission to this effect. The Commission, argue cooncil chiefs, must apply itself not just to devolution within the UK, but also to "devolution" within Scotland. In the Daily Record, Matheson argues that while he shares:

"... the widespread consensus that more powers should be devolved to Scotland, this cannot just be pass-the-parcel between Westminster and Holyrood. Simply moving powers from one centralising parliament to another isn't true devolution."

Precedent for conceptualising greater local authority power in terms of "devolution" is to be found in Labour's Devolution Commission report, which is chock full of references to o'erleaping the Scottish Parliament, and investing civic authorities with additional "devolved" authority. You may or may not agree with Matheson's point about the importance of greater local control over political decision-making. But conceptualising this argument in terms of "devolution," and calling on Lord Smith and his colleagues to give effect to it in a new Scotland Bill in Westminster, entirely misunderstands the legal basis for devolution and - indirectly - calls for the UK parliament to be reinvested with sovereign sway over the shape of Scottish municipal and local government. A funny sort of outcome, for a proposal passing itself off as "true" devolution. Let's take it through in stages.

The bottom line is this: the debate about Scottish devolution is about the powers which Holyrood cannot exercise, what the Parliament cannot change, and which Westminster decisions are to be treated as set in stone. That's the framework which the Scotland Act gives us. It doesn't list powers devolved, but only powers retained. The rest, it commends to the Scottish Parliament's collective judgement.

In law, there is no such thing as a "devolved" power, only a reserved one. And the difference between the two is critical - and totally missed in Matheson's intervention. As things stand, Holyrood cannot introduce its own social security schemes, nor can it modify or repeal the Human Rights Act. What it can do, however, is shape, reshape or even abolish local government in Scotland. MSPs may decide to invest local forms of government with greater and lesser powers, or to diminish their powers in devolved areas. That's their purview. 

Against that legal background, Matheson's idea of "city" devolution is simply incoherent. The only feasible way in which additional powers could be "devolved" to cities by a Scotland Bill is to add local government to the list of things Holyrood can't legislate for under schedules 4 and 5 of the Scotland Act. That's the form of devolution Donald Dewar and his colleagues bequeathed to us in the 1990s, in framing the parliament's founding statute. It's logic is inescapable. What Matheson is - essentially - calling for is for local government to be re-reserved, and for Westminster to determine what form of local government is appropriate for Scotland, immunising Glasgow and its sister councils from unwelcome Holyrood interference. 

We're seriously at risk of conflating two different lines of thinking here. Is it desirable that Scottish local government should enjoy greater autonomy in some areas? Perhaps. There are certainly compelling arguments to be made. Interestingly, this is one of the few themes which Nicola Sturgeon has consistently referenced in her public remarks since the referendum result. Presaging what? Who knows? But it is not, I think, an insignificant choice of topic for the incoming First Minister to expend breath on. 

But the idea that powers should be "devolved" from Holyrood to local authorities by Westminster is a red herring. This could only be achieved by clawing back powers which the UK parliament willingly devolved when Holyrood was founded. It is one thing to agitate in the Scottish Parliament, and to remonstrate with the Scottish Government, for a different vision of local democracy in Scotland to be realised through ordinary legislation. It is quite another to ask for this aspiration to be inscribed, unalterably, in the Scotland Act by Members of Parliament in Westminster. But logically, that's what Glasgow civic leaders are pushing for. 

Is it "true devolution" to have the form and powers of Scottish local government decided by a faraway parliament in the imperial capital, depriving Holyrood of powers it has enjoyed since 1998 and for the foreseeable future? Pardon me, Mr Matheson, but colour me skeptical. 

Utter scumbags

The intellectual and political problems with the Tory indictment of the Human Rights Act, the European Convention and the Court of Human Rights are legion. The idea of "Europe's war on British justice", and of a meddling Strasbourg Court, is blown to bits by the data. The UK lost eight cases in the European Court last year. Chris Grayling and Theresa May argue that losing 0.48% of the cases lodged against you represents an illegitimate and hyperactive form of judicial activism. 

I believe that the European Court's jurisdiction represents a modest check on the overwhelming powers of the state to crush the life, liberty and privacy of the individual. It is this government's overreaction to the modesty of the European Convention's protections which makes it so contemptible. The Lord Chancellor's dismal suggestion that only the popular and the agreeable parts of our community should have their qualified rights protected spectacularly misses the point. 

I can accept, politically and philosophically, that there is a serious debate to be had about the desirability of entrenching fundamental rights in law, how far you go, and the extent to which we empower (in our tradition, an unelected and socially and professionally narrow) judiciary to take important political decisions in the absence of a participative democratic process. Reasonable people, to my mind, can reasonably differ on these questions. 

What I cannot accept, however, is the properly grotesque argument which this contemptible, reckless, immoral and intellectually bust Conservative Party is running to justify and explain its human rights plans. In Grayling's thumping rhetoric to the grinning faithful in Birmingham, you do not see a meaningful and serious-minded parliamentary deliberation on the contested understandings of human rights, but an abject and irresponsible failure to engage in any intellectual or morally credible way with fundamental rights ideas.

Can it be right - can it ever be right - to deliver anybody over into circumstances where we reasonable expect they will be tortured, subject to inhuman and degrading treatment or the flagrant denial of justice? According to David Cameron and his party, this should be an option, and Jehovah rot them, those "unelected Euro judges" in Strasbourg are holding up the rendering flights. The interfering so-and-sos. Electric batteries are running down in dank cells, unused, somewhere in the world. The state torturer's rope hangs idle. All because some piffling jurist from Luxembourg believes that it can't be right to deport anyone - even your worst enemy - into the hands of humanity's darkest and most inhumane functionaries. Britain deserves better. We must scrap the Act. 

This isn't a civil and anxious debate about the proper scope of privacy rights, or the right to liberty, but a tantrum, impervious to the facts. It's the work of a smug toddler standing triumphant over a fly he's malevolently depinioned. "Aren't I a clever boy?" he gloats. The moral compass of this Conservative Party is a forgotten aftermath of shards and broken glass, arms bent and buckled. Theresa May tells cheap jokes about cats, glowing with the glib self-image of being the new deputy in town, tough on crime, tough on some undifferentiated, disagreeable them, animated only by brisk and matronly common sense. I can't begin to describe the malevolence, tawdriness and irresponsibility of this attitude.

The brutal reality of the Tories' human rights rhetoric is not that it aims to repatriate the human rights debate, but to liberate the government from elementary principles of fairness, humanity, compassion and justice. What they are proposing isn't just politically disagreeable: it is monstrous. See no evil, hear no evil cannot be a principle of British justice. 

Nobody with any moral sensibility could make the case for deporting folk to places where there is a real risk they will be tortured. Nobody with an ounce of responsible humanity could promote it. But this government, this shallow bunch of irresponsible, gut-gripped eejits don't care. It breaks my heart and burns my blood.

After all, how can the trivial matter of connecting one of your fellow, sentient creatures up to a car battery compare to the overwhelming importance of attracting a few extra UKIP votes in the debatable lands of Essex and Kent? How can the soles of feet, beaten black and blue, measure up to the significance of being able to give a sleek and populist address to your fellow Conservatives at Conference, who cheer like dunderheads, more than drowning out the distant screams? Who gives a damn if some villainous foreigner with disagreeable views finds himself suspended from the ceiling, arms half wrenched from their sockets? 

This is Britain. We have the right to live in freedom from such persons. I'm sure you'll find it in Magna Carta somewhere. Why should we care that we've pitched them into this disaster? After all, it isn't our police, our secret services who are sodomising them with truncheons or connecting up their genitalia to car batteries. Lie back and think of England. Rejoice in the liberties of a freeborn Briton: you've earned them. You're not a gypsy, or a criminal, or someone whose views the central government finds disagreeable. Your right not to be tortured isn't trivial.

Congratulations, comrades. We've finally uncovered Britain's moral mission in the world: to lend a helping political hand to tyrants and torturers in Europe, and the great wild world beyond. To excuse their torture chambers and their mistreatments of their citizens, to align ourselves with the Belarusian tyranny, and the persecutors of Kurds, and the Roma. To embolden, in short, everything most ghastly about illiberal state apparatuses. All for the sake of getting a modest electoral edge over Nigel Farage.

 

These people disgust me. 

We cannot deliver people up to torturers' chains and hooks and shrug, unmoved, and say "it is nothing to me guv'" over the anguished cries of the people - the fellow creatures - we make their victims. Yet this is precisely what David Cameron and his allies now propose, for the sake of a sympathetic response from the eurosceptic tabloids. They chafe against the modest restraints of the European Convention, flinging every cheap jibe and intellectually lazy epithet at the judges of the European Court. They want the liberty to do wrong - horrible, horrible wrong - for the sake of a human rights fairytale and good headlines in the Express. Nothing better expresses the festering rot which gnaws at British politics.

These people are scumbags. Utter, utter scumbags.

Devolution: Grayling's human rights petard

Joy be. "So at long last, with a Conservative Government after the next election, this country will have a new British Bill of Rights to be passed in our Parliament rooted in our values and as for Labour’s Human Rights Act? We will scrap it, once and for all." 

Earlier this week, the Tories put some flesh on the bare bones of Cameron's commitments in his conference speech, in a document entitled "Protecting human rights in the UK." The document's only reference to the implications of the wheeze for the devolved authorities in Northern Ireland, Wales and Scotland is the banal observation that:

"We will work with the devolved administrations and legislatures as necessary to make sure there is an effective new settlement across the UK."

English lawyers like Carl Gardner and Mark Elliot have already begun to put the logic of Chris Grayling's madcap scheme to the sword. To some extent submerged in all of this, however, are the implications for Scotland. And here it gets a wee bit complicated. Professor Aileen McHarg has a comprehensive blog on point up on the UK Human Rights blog which surveys the key issues. What follows is a more compressed account, given a more partisan topspin.

A couple of days back, David Maddox published a story on the Scotsman ("Scotland exempt from Tories' Human Rights axe"), which carried a remarkable, clearly edited and utterly incoherent quote from an unnamed Scotland Office spokesman, claiming

"... that human rights legislation is devolved to the Scottish Parliament because it was “built into the 1998 Scotland Act [and] cannot be removed [by Westminster]."

Cue a good deal of misplaced jubilation from folk, keen to see fundamental rights retained in Scots law. Regrettably, the comments attributed to the spokesman, and uncritically printed by Maddox, are credibility-dynamiting rot. They're abject drivel.

Firstly, the Scotland Act is Westminster legislation, and susceptible to amendment or repeal by MPs. To say something is "built into" the Act is neither here nor there. Secondly, the Human Rights Act is categorically not "written into" the Scotland Act. This is a common conflation, but an extremely problematic one. While you won't find human rights listed as a reserved matter in Schedule 5, the Human Rights Act itself appears as a protected enactment in Schedule 4. Short version: human rights are devolved, and Holyrood can pass laws concerning them, but the Scottish parliament is not allowed to repeal or to change the Human Rights Act as is.

As Aileen writes, Scotland is currently subject to two distinct human rights regimes.

The Scotland Act requires Holyrood legislation and Scottish ministers to comply with European Convention rights, but nothing more than that. If legislation or ministerial action violates your fundamental rights, you can traipse off to court and get the offending law or subordinate legislation struck down by the courts. The silence at the heart of the Tory human rights plans about what will become of these devolve protections and constraints is deafening. 

The octopoid Chis Grayling shows no awareness whatever about the devolved dimension, which extends not only to Scotland, but to Wales, and to the Northern Irish Assembly, where the incorporation of human rights formed a core plank of the Good Friday Agreement. All for the sake of a few extra votes in Essex, and the lawful authority to deport people where we reasonable expect them to be tortured, or to be subject to inhuman and degrading treatment, or the flagrant denial of justice.

So much for an ethical foreign policy. The declared aims of the Prime Minister, Theresa May, and the Lord Chancellor are nakedly monstrous and unjust. They make my blood boil. Alyn Smith was right before the referendum: there is bugger all we can do to prevent it within the Union. Not with a Tory government in the grip of a victim-fantasy and strung along by it own fairy tales.

By contrast, the Human Rights Act extends to all public authorities in Scotland. Schools, local government, NHS hospitals. If Westminster abolishes the Human Rights Act, Holyrood and the Scottish Government will remain bound over to observe Convention rights, but Glasgow City Council and the police will be liberated from their obligations to respect freedom of religion and conscience and the privacy and home life of everybody they encounter.

Cue another level of complexity: Sewel motions, or legislative consent motions. Here's where things get politically interesting. As we know, powers devolved are powers retained. Westminster retains the right in law to legislate for devolved matters. In practice, however, that right has been circumscribed by the convention that consent from Holyrood is necessary (a) where Westminster proposes to legislate in a devolved area (for example, the whole-UK civil partnerships legislation of 2004) or (b) where the UK parliament propose to change the scope of the Scottish Parliament's legislative competence (for example, the 2012 Scotland Act, which received the nod from the majority of MSPs).

Under the current convention, the proposed repeal of the Human Rights Act (insofar as it applies in Scotland) and the introduction of any British Bill of Rights proposing a different human rights protection mechanism requires legislative consent from Holyrood. Whichever way you slice it, the refusal of consent looks odds on, either to any Tory plans to (a) eliminate the ECHR provisions from the Scotland Act, or (b) to introduce any new, watered down British Bill of Rights. 

With a Nationalist administration in Edinburgh, these issues take on an additional piquancy. Much more attractive, you might well think, to adopt distinct, Scottish human rights legislation, extending to all public authorities subject to Holyrood's jurisdiction. This approach may be justified, not least, by some of the absurdities of the Bill Grayling has sketched in outline, drubbed by various legal commentators quoted above.

We might even consider folding additional rights into that Scottish legislation which are not to be found in the European Convention. The rights of children, perhaps. We can use our imaginations. As Professor McHarg notes, there is a distinct possibility of fragmentation and complexity here, as both reserved and devolved authorities operate in Scotland and both would be subject to different human rights regimes. On the other hand, let's not make the best the enemy of the good. If Cameron is returned to No. 10 with a majority, "Labour's Human Rights Act" - which was, it should be remembered, supported by newspapers like the Express when it was adopted - will be a dead letter. Far better for the Scottish Parliament to set a different example, however imperfectly.

But one thing's for sure: despite the blithe spirit of indifference animating the Lord Chancellor's fag packet proposals, the fuse has been cut and the taper set to it. The devolved politics of Human Rights Act repeal looks dead set to explode.